TRANSCRIPT

MARGARET WARNER: A divided court ruled today that evidence can be used against a defendant, even if police didn’t knock before entering to execute a search warrant for the evidence. Here to explain the 5-4 decision is NewsHour regular Marcia Coyle, Washington bureau chief for the National Law Journal.

Marcia, welcome back.

MARCIA COYLE, National Law Journal: Thanks, Margaret.

MARGARET WARNER: Now, this was an — eight years ago, this event happened, and it was a drug and gun search. Tell us the circumstances.

MARCIA COYLE: Police in Michigan obtained a search warrant to search the home of Booker Hudson for guns and drugs. They arrived at his home; they shouted, “Police search warrant!” And, in reportedly less than five seconds, opened the door and went in.

There was never any dispute that the police did violate the knock and announce rule that the Supreme Court said is required by the Fourth Amendment, which, as you know, protects all of us against unreasonable searches and seizures.

MARGARET WARNER: And the knock and announce rule says that, in fact, they have to knock on the door?

MARCIA COYLE: Right, and announce that it is the police.

MARGARET WARNER: So the debate was really not about whether they violated that but about what the consequences should be?

MARCIA COYLE: Absolutely. What is the remedy for violating the Fourth Amendment by violating the knock and announce rule?

The traditional remedy, with some exceptions, has been that any evidence seized as a result of the illegal search is to be suppressed. It cannot be used against the defendant at his trial.

The costs and connections

MARGARET WARNER: So Justice Scalia wrote the majorityopinion. On what basis did he argue or rule that, in fact, in this case, theevidence should be allowed in?

MARCIA COYLE: Justice Scalia did two things. First, heweighed the cost and benefits to society of applying the exclusionary rule,which suppresses the evidence. The benefit is to deter future policemisconduct.

Well, he felt the benefit was far outweighed by the cost tosociety of suppressing the evidence. Suppressing the evidence, he said, wouldamount to basically a free get-out-of-jail card for perhaps dangerouscriminals, could result in a constant flood of claims from criminal defendantsor individuals saying police violated the knock and announce rule, and alsocould even result in increased risk of physical violence or destruction ofevidence to police who might wait too long to enter, for fear they might haveviolated the knock and announce rule and the evidence would be suppressed.

So he felt that the cost outweighed the benefit. And he saidthere were less massive remedies for this kind of a violation. He said thatpeople who felt the rule was violated could sue the police in civil actions fordamages. He also felt that the increased professionalization of the police madethem more accountable, as well as internal discipline committees.

MARGARET WARNER: And how important or seminal was it in hisruling that there was a search warrant?

MARCIA COYLE: This was very important. He said that theconnection between the violation of the knock and announce rule and the seizureof the evidence was too attenuated. The evidence was seized as the result of alawful search warrant, not because of the knock and announce rule had beenviolated, and so the exclusionary rule should not apply.

A contentious dissent

MARGARET WARNER: Now, Justice Breyer wrote a very vigorousdissent.

MARCIA COYLE: He did, vigorous and lengthy. He traced thehistory of the knock and announce rule and the exclusionary rule.

He basically said that the knock and announce rule is noless a part of a centuries-old principle of special protection for the privacyof the home than is the requirement that police have a search warrant.

If the knock and announce rule is violated, the resultingsearch is unlawful. If the search is unlawful, he said, the law insists thatthe evidence be suppressed, and it doesn't matter if the evidence was connectedto the search warrant or the underlying reasons for the unconstitutionalsearch.

He also said that what the court did here was to weaken, ifnot destroy, the legal incentive for police to obey the knock and announcerule. And he found no basis in logic, history or precedent for the court todepart from this rule.

MARGARET WARNER: Now, this case had to be re-argued...

MARCIA COYLE: Yes.

MARGARET WARNER: ... after Justice O'Connor left?

MARCIA COYLE: This was one of three cases that the courtscheduled for re-argument. The case was first argued in January when JusticeO'Connor was on the bench, and it's clear that, when she left, they had yet toresolve it, that they were split 4-4. So they needed Justice Alito, who assumedthe bench at the end of January, to help them resolve the case. And he did.

He joined the majority in the 5-4 ruling.

Going against the norm

MARGARET WARNER: Let's look at the potential impact of thisruling. First of all, do police almost always knock and announce? I mean, we'veall seen in these television programs where they say, "Open up,police!" And the first thing that hits the door isn't a knock; it's a footor a club or something.

MARCIA COYLE: Well, it is a rule. And if you believe JusticeBreyer's dissent -- and he cited two various studies -- that the violations ofthe knock and announce rule are legion, he said, and there have been manyclaims under that.

But the truth is that the majority of state and federalcourts that have faced this issue have held that, if police do violate theknock and announce rule, the evidence must be suppressed. And the Supreme Courtitself has upheld suppression of evidence under knock and announce rules infederal statutes that have gone -- or that go back almost a hundred years.

MARGARET WARNER: So do you think this is -- or do peopleyou've talked to think this is going to have a major impact on police behaviorand on lower courts?

MARCIA COYLE: Well, it's a major impact on how the courtswill treat violations of the knock and announce rule, because it now goescompletely counter to the trend of what the courts were doing.

Broader implications

MARGARET WARNER: And very briefly, because we only have acouple minutes or a couple seconds, but does this have broader implications forthe so-called exclusionary rule, under which evidence is suppressed under allkinds of different searches?

MARCIA COYLE: What was interesting about Justice Scalia'sopinion is that he looked to police training as a reason not to apply theexclusionary rule, and he mentioned this attenuated connection between theevidence and the violation.

I think those are new analyses and they may well affect howthe exclusionary rule is analyzed in the future, but we will probably have towait for a new case.

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